What the NDAA does

The National Defense Authorization Act (NDAA), a $662 billion spending bill that finances the military, was the focus of a contentious fight in recent months, including a formal veto threat from the White House. This week, however, there was considerable movement, including 11th-hour changes to the language, the withdrawal of the veto threat, and passage of the bill in both the House and Senate. President Obama will, by all accounts, grudgingly sign it into law.

The question, then, isn’t whether the bill is disappointing. Rather, it’s appreciating just how disappointing it is.

Adam Serwer, who’s covered the ins and outs of the NDAA fight better than anyone, has a helpful piece today summarizing what the bill does (and just as importantly, what it doesn’t do).

[The NDAA] says that the president has to hold a foreign Al Qaeda suspect captured on US soil in military detention — except it leaves enough procedural loopholes that someone like convicted underwear bomber and Nigerian citizen Umar Abdulmutallab could actually go from capture to trial without ever being held by the military.

It does not, contrary to what many media outlets have reported, authorize the president to indefinitely detain without trial an American citizen suspected of terrorism who is captured in the US. A last minute compromise amendment adopted in the Senate, whose language was retained in the final bill, leaves it up to the courts to decide if the president has that power, should a future president try to exercise it. But if a future president does try to assert the authority to detain an American citizen without charge or trial, it won’t be based on the authority in this bill.

There’s been a fair amount of coverage this week, arguing that the bill, among things, empowers the executive branch “to throw American citizens into prison for life without charges or a trial.” Adam’s reporting shows otherwise.

This is not to say the NDAA is a good bill. In fact, as Adam explained, the bill’s language “writes into law an assumed role for the military in domestic counterterrorism that did not exist before,” and though this president and this administration appear to have no interest is using the law the way Republicans would like, we don’t know how future presidents may implement the same provisions.

But it’s not quite as outrageous as some reports have suggested.

I had one related thought about this. President Obama has been facing quite a bit of criticism from the left over the NDAA’s provisions, and that’s understandable. It’s pretty easy to make the case that the measure should have been vetoed.

That said, if I’m making a list of those responsible for the NDAA’s most odious measures, the White House wouldn’t be on top. I’d start, obviously, with congressional Republicans whose misguided worldview intended to make the NDAA even more offensive, but it was a whole lot of congressional Democrats who went along with them.

We’ve seen this problem before — most notably with the detention facility at Guantanamo Bay — where the president and his start off in a relatively good place in a national-security dispute, but end up in a much worse place because congressional Dems helped push them there.

Regardless, the NDAA is done. Recalling a phrase I’m sure I’ve used more than once this year, it’s bad, but it could have been worse.

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